Wednesday, March 15, 2006


A federal prosecution that was brought about a decade ago and that ultimately went to the Sixth Circuit Court of Appeals raises some difficult issues about whether we can outlaw the posting of certain types of information on the Internet.

The case did not involve the usual categories of problematic material, like child pornography or libel or bomb-making instructions or classified information. Instead, it involved fantasy . . . more specifically, fantasy about a real person.

The case is United States v. Abraham Jacob Alkhabaz a/k/a Jake Baker, 104 F.3d 1492 (6th Cir. 1997). In the fall of 1994, Alkhabaz, who had apparently used his mother's name (Baker) for years, was an undergraduate at the University of Michigan. In October, Baker began submitting stories depicting the rape, torture and murder of young women to the usenet group. One of the stories depicted -- in graphic detail -- the rape, torture and murder of one of his classmates, a woman I will call Jane Doe. This story, like the other stories Baker posted, are notable both for the extreme violence they depict (such as raping their victim with a hot curling iron or hanging her upside down, cutting her with a knife, pouring gasoline over her and setting her on fire), but for the sadistic enjoyment the writer seems to take from the victim's pain. One of the stories is quoted in the dissent in the Sixth Circuit case.

The story came to the attention of University of Michigan authorities, who contacted the police. When the police searched Baker's computer, they found more stories; they also found an email correspondence Baker had maintained with a Canadian known as Arthur Gonda. The emails outlined a plan by which the two men would meet in real-life, abduct a young woman and carry out the fantasies depicted in Baker's stories and his emails to Gonda. The police apparently believed Baker and Gonda represented a threat to potential victims, and so they brought in the FBI, who arrested Baker and brought an initial complaint charging him with sending threats via interstate commerce. A grand jury later indicted Baker on the same charges.

The charges were brought under section 875(c) of Title 18 of the U.S. Code. Section 875(c) makes it a federal crime to transmit "in interstate or foreign commerce any communication containing any threat to kidnap any person or to injure the person of another". Baker moved to dismiss the charges against him, arguing that while he had sent communications via interstate commerce, neither his postings nor his emails to Gonda constituted "threats" to kidnap and/or injure another person. The district court agreed, and dismissed the charges. The government then appealed the dismissal to the Sixth Circuit Court of Appeals, which takes us to the decision I cited earlier.

With one judge dissenting, the Sixth Circuit upheld the dismissal. Like the district court judge, these judges found that while Baker's stories were sadistic and disturbing, they did not constitute "threats" and were therefore protected speech under the First Amendment. They explained that to constitute a "threat," a communication must "be such that a resonable person . . . would take the statement as a serious expression of an intention to inflict bodily harm". They also found that to constitute a threat, such a communication must be such that a reasonable person would perceive it as being communicated "to effect some change or achieve some goal through intimidation". One judge dissented, primarily because he did not believe a "threat" requires the second element, i.e., requires a purpose to use intimidation to achieve some end. (This judge was also clearly disturbed by the content and tone of Baker's stories and emails.)

I don't particularly like Baker's stories and emails, but I agree with the Sixth Circuit majority: I don't think they constituted threats. There is absolutely no indication that Baker ever meant for the classmate whom he wrote about to see his stories or emails. That, to me, establishes that his various missives could not constitute a "threat," at least not as the term has always been defined. My new Chambers Dictionary (9th ed.) defines threat as "a declaration or indication of an intention to inflict harm" on someone. Threats are usually communicated to the victim, either directly or indirectly; they are often part of a course of conduct that may eventually culminate in the threatener's carrying through, and harming or killing the victim. In that sense, they are an act of preparation -- part of the process by which the threatener cranks himself/herself up to actually harm the person who has become the object of his/her hostility. In another sense, a threat is a promise -- a promise to do someone harm in the uncertain future.

Baker made no effort to share the scenarios he laid out in his stories and emails with the woman he identified as the victim of some of those scenarios. (He apparently targeted different women in some of the scenarios.) He did "publish" some of them on the Internet, which is, as far as I can determine, how the classmate featured in some of the scenarios discovered what he had written. But he made no attempt to direct the scenarios at the women featured in them;
Baker would later claim the stories were pure fantasy -- a form of therapy. He apparently argued that he was role-playing in the stories and in his emails with Gonda, and he never had any intention of actually carrying out the horrors he was describing.

I can't venture an opinion on that, though I gather
Baker has lived a quite, uneventful life since all of this happened. I'm not interested in Baker, though; what I find interesting is the difficult issues raised by the facts in this case.

A few years ago, when I first began working on cybercrime, a police officer who had been dealing with computer crime for a while posed this hypothetical (I think it was a hypothetical) to me: Assume an apartment complex, a typical apartment complex in any city in the U.S. (or anywhere else, for that matter). A man (John) who is skilled in the use of computer technology lives in the complex, as does a young woman (Mary) whom he finds attractive. John asked Mary out several times, but she turned him down. This angered John.

John surreptitiously videotapes Mary as she walks to and from her car on several occasions. This gives him a range of images of her. He then uses computer technology to alter a video he has obtained; the video depicts a young woman being violently raped, murdered or both (take your pick). John uses his computer expertise and the images he has captured of Mary to alter the video so that it now appears it is Mary who is being raped/murdered/both. John then posts the altered video to a website, where it plays endlessly. Mary learns about the website, watches the video and is horrified.

The question the police officer posed to me was, "Has John committed a crime?"

Good question. It seems to me that under the holding in Alkhabaz, John has not "threatened" Mary. He did not send the video to her, he posted it online. Like Baker's scenarios, John's video is a fantasy, a violent, graphic fantasy that happens to feature a real person, but still a fantasy.

Mary might argue that John is stalking her, but under stalking law (I'll get to that someday), the crime generally requires both (i) a credible threat to cause physical injury to the victim and (ii) a continuing course of conduct directed at the victim. Under Alkhabaz, we don't have a credible threat of physical injury to Mary; and I don't think we have a continuing course of conduct directed at her, either. The requirement goes to things like repeatedly following the victim, or repeatedly calling or emailing her/him. Mary might argue that the repeated playing of the video online satisfies this requirement; the problem with that argument, though, is that the video is not directed at her. Like Baker's fantasies, this video fantasy is being broadcast to the world.

Thankfully, I haven't seen this virtual-rape/murder hypothetical occur in reality. But I wonder how law enforcement and the law would react if we were to see someone carry out a version of the hypothetical in real-life. What recourse, if any, would someone have if they were unwillingly featured in a fantasy or fantasies someone else posted online?

The chances of criminal prosecution would, I think, be slim or non-existent. As I explain above, I don't think the conduct would be prosecuted either as a threat or as stalking; it might constitute harassment, but that, too, tends to require conduct that is directed at the ostensible victim of the harassment. If John were charged with harassment, he could claim that the material he posted online was "art," was speech he posted to share with the world.

Mary might try suing for defamation, but I doubt John would have enough money to make it worth her while or, more importantly, to pay the fees of the attorney she would need to pursue such action. Defamation is a crime in some states, but it is seldom prosecuted, and I am not sure that John's "fantasy" would qualify as defamation, anyway.

The Jake Baker case and this hypothetical both illustrate the difficult issues that can arise when the modes of publication are no longer controlled exclusively by corporate entities (television networks, newspaper and magazine publishers, stations) which would never publish Baker's scenarios or play John's video.

1 comment:

Anonymous said...

Well, first off, every "undesirable" act is not a crime. Indeed, every "injury" to another person is not a crime. The modern attempt to try to make every "undesirable" act a crime has created more infringements than safety IMHO. We do not have a “right to not be offended” by other people’s expressive conduct.

What is the nature of the woman's injury from the video? Emotional injury. John's acts in causing that injury are quite likely tortious -- such as intentional infliction of emotional distress. This would be true even if the videos were “nice” (such as manipulating the images to make the woman appear saintly, etc) if they caused emotional distress to the woman and a reasonable person would experience actionable emotional distress from his conduct... and of course the civil suit did not violate First Amendment rights.

The fact John may be judgment proof is irrelevant.